MRE

Question 1

104(b)

Answer 1

Relevance that Depends on a Fact (One type of Lack of Foundation)
-When the relevance of a fact is dependent on if that fact exists, foundation must be laid to support that the fact does exist.
-The evidence may be admitted if the foundation is to be laid later.

Question 2

Application of 104(b): Relevance that Depends on a Fact

Answer 2

One type of lack of Foundation, foundation must be laid as to why a fact is relevant or exists, but also allows for proffering for foundation to be laid later.

Example: When a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. (via Cornell Law School Legal Information Institute – https://www.law.cornell.edu/rules/fre/rule_104)

Question 3

104(e)

Answer 3

Evidence Relevant to Weight and Credibility:

Rule 104 does not prevent parties from introducing evidence that is relevant to the weight or credibility of other evidence.

Question 4

Application of 104(e): Evidence Relevant to Weight and Credibility

Answer 4

Although irrelevant factually, evidence may be admitted to support existing testimony.

Example: Eliciting that a prisoner testifying for the prosecution will be released if their testimony results in a conviction would make no fact more or less likely. It would however be relevant for the jury to hear this in order to give the prisoner’s testimony the weight and credibility it deserves.

Question 5

106

Answer 5

Remainder of Related Writings or Statements
-If a party introduces all or part of a writing or recorded statement;
(a) an adverse party may require the introduction, at that time, of any other part of that statement, or;
(b) may require the introduction of any other writing or recorded statement
If in all fairness they should be considered at the same time.

Question 6

Application of 106: Remainder of Related Writings or Statements

Answer 6

Opposing counsel can request the court to consider or introduce documents that would ‘shed more light’ on statements or writings introduced by that counsel. It’s all about adding context.

Example: If just a sentence out of an email chain referring to a contract is elicited, it may be “taken out of context,” so to speak. At that time, it would be fair for counsel to request the introduction of the whole email, email chain, or that contract they are talking about if it adds context.

Question 7

201

Answer 7

Judicial Notice of Adjudicative Facts
(a) Scope: This rule covers the court taking judicial notice (accepting a fact as conclusive), only for facts of the case, not facts of law. No rule deals with facts of law.
(b) Kinds of Facts That May Be Judicially Noticed: The court may take judicial notice that a fact cannot be reasonably disputed because
(1) Is generally known within the trial court’s territorial jurisidiction
(2) Can accurately and readily be determined from sources whose accuracy cannot be reasonably questioned.
(c)(2) Taking Notice: The court MUST take notice if a party requests it and is supplied with the necessary information.
(d) Timing: A request for judicial notice may happen at any stage of the proceeding.
(e) Opportunity to be Heard: On a timely request, a party must be heard, if requested, on if taking judicial notice is appropriate and the nature of the fact to be noticed. This can also occur after the court takes judicial notice.
(f) Instructing the Jury: In a civil case, the court instructs the jury to accept the fact as conclusive. In a criminal case, the court instructs the jury that it may or may not accept the fact as conclusive.

Question 8

Application of 201(a): Judicial Notice of Adjudicative Facts, Scope

Answer 8

This rule allows counsel to request the court to accept a fact that pertains to the case as conclusive. It does not apply to requests for the court to accept a legal fact as conclusive.

The court may take notice of ANY fact of a case, subject to 201(b) (It is generally known or can be readily determined from authoritative sources).

Example A: A 911 call is made at 11:50pm. The timestamp of the 911 call is recorded and stored on a secure database owned by the state. A request for the timing of this call to be judicially noticed would meet 201(a) as it is an “adjudicative fact,” it deals with the case.

Example B: In an Aggravated Arson case, the Defense is arguing that there was no aggravating factor. The basis for this argument relies on a specific piece of case law. 201 would not apply if defense counsel asked the court to take judicial notice of the case law, as it is a “legislative fact.” This does not mean the court cannot take judicial notice, but simply that 201 does not apply.

Question 9

Application of 201(b): Judicial Notice of Adjudicative Facts, Kinds of Facts that May be Judicially Noticed

Answer 9

Facts to be judicially noticed must either be (a) common knowledge for the area where the court is, or (b) that is is readily determined from sources whose accuracy cannot reasonably be questioned.

Example A: A court in a predominantly bilingual Spanish/English-speaking district is asked to take judicial notice of the fact that “Hola” means “Hello” in English. The court would most likely judicially notice the fact, as it would be common knowledge for the majority of the people in the district.

Example B: A court is asked to take judicial notice of the fact that objects on earth fall at a rate of approximately 9.8m/s^2. Although not everyone in the district may be readily familiar with the physics of gravity, the body of knowledge and physics that uses this fact means that it cannot reasonably be questioned. The court would most likely take judicial notice of this fact.

Example C: A court is asked to take judicial notice of the fact that someone who calls 911 ordering a pepperoni pizza is a undercover way of reporting that they have been kidnapped/are being held hostage. The court would be unlikely to judicially notice this fact, as it would not be common knowledge (If it were, there would be a different undercover code), and the accuracy of this cannot reasonably be questioned. (user135790063 on TikTok is not an authoritative source.)

Question 10

Application of 201(d): Judicial Notice of Adjudicative Facts, Opportunity to be Heard

Answer 10

A request for the court to take judicial notice of a fact may be raised at any time. Pre-trial, Opening Statements, P CiC, D CiC, Dx, Cx, Closings, etc.

Question 11

401

Answer 11

Test for Relevant Evidence:
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probably than it would be without the evidence; and
(b) The fact is of consequence in determining the action

Question 12

Application of 401: Test for Relevant Evidence

Answer 12

401 is mainly a definitional rule, and should NOT be used for objecting to relevance – that’s rule 402. It should however be used to support rule 402 to describe why a piece of evidence is irrelevant.

It can however be used to determine what to elicit in preparation; mainly that it has a tendency to make a fact more or less likely, and that fact actually pertains to today’s case.

Question 13

402

Answer 13

General Admissibility of Relevant Evidence:
Relevant evidence is admissible unless any of the following provides otherwise:
- The U.S. Constitution
- The Midlands Rules of Evidence
- Other Rules Prescribed in Midlands

Irrelevant evidence is not admissible.

NOTE: Under AMTA guidelines, (see comment of 402 on MRE) anything not mentioned or reasonably inferred from the case packet (excluding depos), is irrelevant. Therefore, ANY unreasonable invention of fact is not only impeachable, it’s also irrelevant.

Question 14

Application of 402: General Admissibility of Relevant Evidence

Answer 14

Rule number for a relevance objection, as “Irrelevant evidence is not admissible.”

The note on information being relevant unless anything else provides otherwise is simply protecting against things not automatically being admissible because they’re relevant – something can be relevant, but more prejudicial for example. In this case, the examples it gives are the U.S. Constitution, which typically doesn’t apply in Midlands because parties waive objections to U.S. Constitution); the MRE (e.g., 403); or “other rules prescribed in Midlands,” which is really a catch all for all case law and stipulations in a case packet.

NOTE: Under AMTA guidelines, (see comment of 402 on MRE) anything not mentioned or reasonably inferred from the case packet (excluding depos), is irrelevant. Therefore, ANY unreasonable invention of fact is not only impeachable, it’s also irrelevant.

Example 1: A witness talks about seeing the defendant at a location 30 minutes away from the scene of a crime at the time the State alleges the crime occurred. This information is included in their affidavit. This would be relevant under rule 401, and does not violate any rules, so it would be admissible.

Example 2: A witness enters into a soliloquy about what they ate before testifying today. This would be irrelevant, as it makes no fact of relevance in today’s case more or less likely pursuant to 401.

Example 3: Immediately following a serious automotive collision, the defendant rushed over to the plaintiff saying “I’m so sorry, I’ll cover the whole bill.” Although this could be extremely relevant towards determining the defendant’s fault, rule 409 prevents these offers from being entered into evidence to determine liability. As a result, although it is relevant, it is still inadmissible under “any of the following provides otherwise” rule.

Example 4: In an arson case, at affidavit witness states they physically saw the defendant light the fire on direct examination. This fact was included nowhere in their affidavit. Although seemingly relevant, AMTA’s rules note that because this is not described in the witness’ affidavit, it is irrelevant, and an objection on those grounds can be made. The better course of action would be to impeach on cross exam however. This does not apply to depo witnesses.

Question 15

403

Answer 15

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons:

The court may exclude relevant evidence if it’s probative value is substantially outweighed by its:
- unfair prejudice,
- ability to confuse the issues
- misleads the jury
- causes undue delay
- wastes time
- or needlessly presents cumulative evidence

Question 16

Application of Rule 403

Answer 16

403 is essentially the “vibes” objection, where something is inherently wrong with the question and you don’t know what it is, but you’ll figure it out later. It is the most workhorse of objections, simply because it includes so much, and so broadly. Although they may be simple objections, that doesn’t mean they’re bad objections, and sometimes can be the most needed.

Specifically, this rule states that even if evidence is relevant, it is inadmissible if it’s probative value (it’s ability to determine a fact in question) is surpassed by: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.

This rule is most commonly used for a Prejudice objection, but it is not limited to that.

Question 17

Application of Rule 403 in reference to unfair prejudice

Answer 17

More Prejudicial than Probative Objection:

It is much more likely to prejudice the jury than it is to provide probative value. All relevant evidence has some prejudicial value, so this must be UNFAIRLY prejudicial so that it “inflames the passions of the jury” – essentially makes the jury start to think with their hearts and not with their heads.

Example: Plaintiff intends to admit a photo of the dead body of the victim. No visible injuries can be seen. In this case, although the victim’s body would be relevant, the relevant info gleamed from that particular photo would probably be outweighed by the emotional effect of seeing the dead body. Therefore, it may be more prejudicial than probative.

Question 18

Application of Rule 403 in Reference to Confusing the Issues/Misleading the Jury

Answer 18

Confusing the issues and/or Misleading the Jury are flip sides of the same coin. They both serve to prevent relevant evidence that would confuse or mislead the jury from being shown to the them.

Confusing the Issues typically goes towards evidence intended to prove legal elements of a case.

Misleading the Jury typically goes towards factual elements of a case.

However, they are ‘technically’ interchangeable.

Example 1: On cross examination, an attorney attempts to elicit a statement in which the defendant said to the witness “Yeah, I did it.” However, the full quote from the defendant is “I’m not going to to the police and say ‘Yeah, I did it.’” Eliciting this one fragment would substantially mislead the jury as to what the defendant’s actual statements are, and so while relevant, is Misleading the Jury.

Example 2: In a negligence case, plaintiff counsel appears to insinuate that defense counsel must (and hasn’t) proven that defendant’s breach was not the direct and proximate cause of the plaintiff’s harm. defense counsel is not pursuing an affirmative defense. Therefore, plaintiff’s contention is false, the defense has no such obligation, and to insinuate as much would be Confusing the Issues.

Question 19

Application of Rule 403 in reference to Undue Delay/ Wasting Time

Answer 19

Undue delay and wasting time are often presented together, as they cover the same grounds: the testimony being elicited is causing an undue delay in the trial or wasting the jury, the judge’s (and your) time. Therefore, although the content may be the same, the situations may be slightly different and self-explanatory.

Most likely, this will present itself in a Narrative Response objection – where the question specifically calls for the witness to ramble on for a long period of time and you want them to stick to the facts. In mock trial, only object if it’s egregious – it’s their time, let them do what they want with it.

On cross exam, if you ask a witness to read or state something, and they take a really long time to do it, that may be Wasting Time. If you have good cross form, it shouldn’t go to this place, but if it’s clear that they are doing this slowly, and with intent to spite, as a last resort you may request the court to instruct the witness to answer the question efficiently. USE ONLY AS A LAST RESORT.

Example 1: Counsel asks the witness to walk the court through “everything you think is relevant to this case.” This is Wasting Time, as it calls for an unnecessary narrative response.

Example 2: Counsel asks the witness to describe their time at a specific location. The question itself does not call for something that is unnecessarily wasting time. How the witness answers it, however, could be wasting time. If they describe the location, that’s alright but if they’re planning to become William Wordsworth for 10 minutes. Shut. It. Down.

Example 3: On cross examination, counsel is attempting to impeach. Upon asking “is this your affidavit,” the witness proceeds to very slowly, spitefully, read it line by line. In mock at least, where there is a limited time for cross, this may be objected to as the witness causing undue delay to today’s proceedings.

Question 20

Application of Rule 403 in reference to Needlessly Cumulative

Answer 20

Needlessly Cumulative objections essentially state that the same fact is being gone over again and again, or, more typically, reading things already in evidence onto the record.

If the same fact is being gone over again, it must be to an extent where eliciting the same fact becomes needless, i.e. there is no reason to elicit this testimony again for the nth time. We learn nothing new from this time hearing this fact, or can give the fact no additional weight, that we didn’t learn the other times.

If things already entered into evidence are being read onto the record, typically a few short statements are not needlessly cumulative. Eliciting many short statements when things are in evidence would be needlessly cumulative, or reading the entire record, or entire paragraphs is needlessly cumulative. General rule of thumb is that on or after the third statement elicited, object.

Example 1: Two eyewitnesses to an assault and battery testify as to the exact same version of events in court. Although we have already heard the facts, it is not needlessly cumulative as hearing the exact same version of events adds weight to the credibility of the witnesses. At some point however, no more credibility can be elicited. 50 witnesses going over the exact same version of events is needlessly cumulative.

Example 2: An insurance policy has been entered into evidence. Counsel asks the witness to please read the entirety of subsection d, which is 3 pages long. This would be needlessly cumulative.

Example 3: Counsel asks the witness to read statements from section 4(a), 5(c), 10(d), 11(a)(2), and 12(b) of a pre-admitted insurance policy onto the record. Each of these statements is one or two sentences, and covers a different piece of subject matter in the contract. Although the document is in evidence, counsel is just drawing the court’s attention to points of interest. It would not be needlessly cumulative.

Question 21

404(a)(1)

Answer 21

Character Evidence, Prohibited Uses:
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Question 22

Definition of Character Evidence

Answer 22

Character evidence is evidence of some sort of trait of an entity, elicited to prove something about that entity.

A character trait can be almost anything – their tendencies to act in a virtuous manner (generosity, honesty), to have a vice (disloyalty), a physical, mental or emotional characteristic (agile, careful, happy-go-lucky), or something they have a propensity to do or be someone they have a propensity to be in relation to something else (careful driver, caretaker of a location, etc). It is often elicited through a description of someone’s reputation or a specific act of a person, whether it goes directly or indirectly to the character trait being elicited. (A murder conviction could be character evidence for being violent, as could rumors in the community that they are violent).

The character traits elicited suggest something about the kind of person someone is, or the kinds of things they do. For example, evidence that someone is a liar would be character evidence used to call doubt on their testimony. Likewise, evidence that someone is a careful driver would be character evidence to prove that they, well, drive carefully.

Not all character evidence is admissible – it is highly dependent on circumstances in which it is elicited and the type of evidence being elicited. Character evidence mostly relates to rules 404, which is specifically about character evidence, and crimes; 405, which is about proving character; 406, which is about habits and routine practices; 607, which is about impeachments and credibility; 608 which is about truthfulness and untruthfulness; 609, which is about criminal convictions and truthfulness/untruthfulness; 610 which is about religious beliefs and opinions; 806 for witnesses whose statements were elicited in court but did not testify; and 901, to the extent that character evidence is used to authenticate or identify evidence

Question 23

Application of 404(a)(1): Prohibited Uses of Character Evidence

Answer 23

Typical Character Evidence Objection.

Character evidence may not be used to prove they acted a certain way on a particular location. This is fairly self explanatory – just because someone has a reputation to act in a certain way or did so in the past does not mean they did so on a particular occasion, and it would be improper to insinuate that.

At a certain point, someone’s character traits, if they ALWAYS act in a particular, specific manner, may be considered a habit or routine practice (Rule 406). This is an exception to the rule on character evidence.

Just because something is character evidence that goes to explain someone acted in a certain way does not mean it is automatically inadmissible. If it has another overriding purpose, it may still be admitted, although it may be prudent to ask for a limiting instruction that it only goes to that overriding purpose alone.

For 2022-23, AMTA has introduced case law Krent v. Lions, Inc. which allows for an exception to 404(a) hearsay if the party’s case theory relies on blaming a third party and their bad character, subject to Rule 403.

Is this character evidence?

Example 1: A witness testifies that the defendant was always very honest when she did business with them. This is character evidence, it elicits the character trait of honesty.

Example 2: A family friend testifies that the plaintiff had a particular affinity for Lexuses (Lexi?). This is most likely not character evidence, as person’s preference does not elicit any character trait. If the testimony is intended to argue that someone did something connection with that affinity, then it would be.

Example 3: A small business owner testifies that they typically keep their shop pretty tidy. This is character evidence, as it shows propensity to keep their shop tidy, even if it is elicited by the person itself.

Example 4: A witness testifies as to how much a friend of theirs loved their spouse in a divorce hearing where the cause for divorce is adultery. This would be character evidence, as it insinuates that because that person loved their spouse, they would tend to act in a certain way towards that spouse (i.e., not cheat).

Example 5: Plaintiff’s attorneys enter into evidence a record which details five separate times in the past decade where the defendant was convicted of criminal reckless driving, which carries a maximum sentence of up to 16 months in prison. This is character evidence, it elicits the fact that the defendant has a tendency to be a reckless driver, even if it is not elicited by a witness.

Example 6: Defense counsel is attempting to elicit that a third party (not appearing in today’s case) was the one responsible for issuing misleading statements, based on character evidence for dishonesty. In AMTA’s view for 2022-23, this would be admissible character evidence.

Question 24

404(a)(3)

Answer 24

Character Evidence, Exceptions for a Witness:

Evidence of a witness’s character may be admitted under rules
- 607 (Impeachment/Attacking Credibility)
- 608 (A Witness’s Character for Truthfulness or Untruthfulness), and;
- 609 (Impeachment by Evidence of a Criminal Conviction)

Question 25

Application of 404(a)(3): Character Evidence/Exceptions for a Witness

Answer 25

This rule outlines general exceptions to the rule against entering character evidence for a witness testifying in a given case. It lays 3 rules where evidence of a witness’s character may be admitted:

Rule 607, which allows for Impeachment and attacking the credibility of the witness. Essentially, any character evidence that could effect the way the jury perceives the credibility of a witness may be admitted.

Rule 608, which allows for evidence to be discussed regarding truthfulness and untruthfulness. In AMTA, this may be limited based on captain’s forms. It allows testimony and opinions about someone’s reputation for untruthfulness, and their reputation for truthfulness if they have been attacked for untruthfulness already or it is apparent they will be (notice given)

Rule 609, which allows for some previous criminal convictions to be brought up, subject to time, it’s probative value, and type of crime.

Simply because this exception deals with witnesses doesn’t mean character evidence relating to a witness can only be elicited in the examination of that witness. Witness A can testify as to character evidence about Witness B.

This does not apply in situations where you are eliciting someone’s crime, wrong, or other act to prove they are acting the same on another particular occasion (i.e. a past criminal conviction for fraud cannot be used to prove that a person was acting fraudulently on a particular occasion)
Do the following apply under this rule?

Example 1: On cross examination, counsel elicits that an eyewitness is a heavy drinker, intending to use this to suggest that the eyewitness’s testimony isn’t reliable. This is an allowable exception under this rule. The eyewitness is a witness, and this is an impeachment under rule 607, as it goes to the credibility of their testimony.

Example 2: Jane testifies that Jack, who will not be appearing in court, is untruthful. This does not apply. Although it goes for untruthfulness under 906, Jack is not a witness, and therefore this section does not apply.

Example 3: Sarah testifies that Sophia has never lied to her. Notice was provided before the trial that counsel intends to provide character evidence that Sophia is untruthful. This would apply under this rule, as Sophia’s character has (or will be) attacked, and therefore under rule 608 character evidence can be provided for Sophia’s truthful character.

Example 4: A witness was released from prison after finishing a 5 year sentence for larceny last month. Counsel intends to elicit this on cross examination. They are not using it to suggest this witness committed larceny on another occasions. This would apply under this rule, as under rule 609 Impeachment by Evidence of a Criminal Conviction is allowed.

Question 26

404(b)(1)

Answer 26

Crimes, Wrongs, or Other Acts, Prohibited Uses

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion they acted in accordance with that character.

Question 27

Application of 404(b)(1), Prohibited Uses of Crimes, Wrongs or Other Acts

Answer 27

Another Improper Character Evidence Objection. While character evidence objections under 404(a)(1) go to character evidence pertaining to a person’s traits, this subsection refers to character evidence suggesting that because someone did a SPECIFIC act in the past, they will do that same SPECIFIC act again. Exceptions under 607, 608, and 609 do not apply here, unlike in 404(a).

Does this subsection apply to the following?

Example 1: Testimony is being elicited that the defendant breached (violated) a previous contract by not paying the agreed upon consideration. The lawsuit is regarding the defendant’s breach of contract on a different occasion by not paying the agreed upon consideration. This subsection would apply, and it would not be admissible character evidence, because it is a prior wrong being used to show that on a different occasion, the person committed the same wrong.

Example 2: On cross examination, an attorney asks an eyewitness if they had previously been convicted of making false statements to police earlier this year, a crime which carries a maximum penalty of 20 years. This is being done to attack the witness’s credibility in their testimony today. This subsection would not apply, as they are not using this eyewitness’s previous act of making false statements to police to prove they made false statements to police in court today, but instead to prove untruthfulness, which would fall under subsection 404(a).

Question 28

405(a)

Answer 28

Methods of Proving Character, By Reputation or Opinion:

When character evidence is admissible, it may be proved by testimony about the person’s reputation in the community or by testimony in the form of an opinion.

On cross-examination, the court may allow inquiry into relevant specific instances of conduct.

Question 29

Application of 405(a): Methods of Proving Character by Reputation or Opinion

Answer 29

This is the main way, and except for certain situations, the ONLY way to elicit character evidence. The witness testifying must state that they hold a belief that this character evidence is true or that they know the character evidence is part of the persons’ reputation (they’re commonly known in the community as having this trait).

Only on cross examination can any specific actions be elicited to prove character evidence, in addition to any reputations or opinions.

Example 1: On cross examination, counsel is eliciting that the witness has been fired from previous jobs as a server because they kept dropping things. They are trying to elicit a trait of clumsiness. This is admissible testimony under 405(a) as it is a specific act on cross examination.

Example 2: On direct examination, a witness offers that “I feel very safe with Charlie driving.” This would be admissible, as it is the witness’s opinion about Charlie’s character as a careful driver. It doesn’t elicit any specific act as to why Charlie is a careful driver, making it permissible.

Example 3: On direct examination, a witness states “Ever since Amy was caught skimming money from accounts receivable, nobody at the company has taken her word at face value.” This is partly admissible. The latter part of the statement “nobody at the company has taken her word at face value” would go to testimony of a person’s reputation and would be admissible. The qualifier “ever since Amy was caught skimming money from accounts receivable” however, is impermissible as it goes to a specific act of Amy.

Question 30

405(b)

Answer 30

Methods of Proving Character, Specific Instances of Conduct:
If a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Question 31

Application of 405(b): Methods of Proving Character by Specific Instances of Conduct

Answer 31

This rule outlines the only time on direct examination where it is permissible to elicit character evidence from specific instances or events involving that entity. It must be character evidence that helps to prove something that is axiomatic (i.e., must be proved), for P-Side or D-Side’s case theory.

In other words, the character evidence elicited from a specific trait or action is only admissible if the Plaintiff or Defense cannot prove their case without that character evidence.

Example 1: In a murder case, defense is alleging self-defense. They are attempting to elicit that the defendant is easily excited based on the defendant’s time in a horror house earlier in the year in order to convince the jury of their defense. The jurisdiction in this case applies an objective standard to self-defense defenses (that is, whether or not self-defense is justified is based on if an average reasonable person would fear serious injury to themselves or death). This would not be admissible, as the character trait of being “easily excited” has no bearing on their self-defense case in this jurisdiction – they must prove a reasonable person would fear for their life, not if an easily excited person would fear for their life.

Example 2: In a products liability case where the Plaintiff is alleging poor design, they are attempting to elicit testimony about previous times when the defendant company failed to exercise due care in designing their products. Testimony about these previous poor designs would be admissible, as the defendant’s character trait of being careless in product design is axiomatic to the Plaintiff’s case.

Question 32

406

Answer 32

Habit or Routine Practice:

Evidence of a person’s habit or an organization’s routine habit may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. It may be admitted regardless of corroboration or even if there is an eyewitness.

Question 33

Application of 406, Habit of Routine Practice

Answer 33

This is an exception to the rules on character evidence. At some point, someone’s traits or actions are so persistent to the point it ALWAYS happens, that we can assume it would happen on a specific instance. This rule typically doesn’t allow for any variance, it must be done, and always be done, in a certain way.

The rule about being admitted regardless of corroboration or even if there is an eyewitness simply lowers the burden as to how much proof is needed to qualify an act as a habit or routine practice.

Example 1: The opening manager at a retail store testifies that they unlock the doors to the store every morning, and the only people with the keys to the store are the opening manager and the closing manager. The opening manager is never there in the afternoon, but they testify that policy is for the closing manager to close up. The habit or routine practice counsel attempts to elicit is that the store always locks after business hours. This would be an admissible exception under rule 406, as even though we have no direct witness testimonies that the closing manager does, in fact, lockup after business hours, the fact that only the closing manager ALWAYS has the keys, it is policy for the closing manager to ALWAYS close the store, and the opening manager ALWAYS unlocks the store leaves it reasonably assumable that the store makes it a routine practice to lock up after business.

Example 2: An eyewitness testifies that David usually passes by 14th Street at 7am during David’s morning walk. This would not be admissible under Rule 406. Usually is not ALWAYS, and therefore it’s not David’s habit. If the eyewitness clarified that David passes by 14th Street at 7am everyday except for Sunday, whenever it is raining, and whenever David is on vacation, then that would most likely be admissible. We know that David will pass 14th Street at 7am ALWAYS whenever those conditions are present.

Question 34

407

Answer 34

Subsequent Remedial Measures:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures cannot prove
- Negligence
- Culpability
- Defects
- Need for warning or Instruction

But it may be admitted for impeachment or for
- Proving ownership
- Control
- Feasibility of Precautionary Measures

Question 35

Application of 407: Subsequent Remedial Measures

Answer 35

When this rule applies is pretty self-explanatory: attorneys cannot use fixes that prevent an action from occurring after the fact to prove that the person who made those fixes was responsible for the act. You can’t use this info to BLAME.

But you can use it to prove that the person making remedial measures
- Had Ownership: They owned the location the injury or harm occurred on.
- Control: The person making remedial measures was able to control activities on the property.
- Feasibility of Precautionary Measures: Because these measures were installed after the fact, it means that it was always a possibility that it could be fixed.

Example 1: Jackson slips and falls on a wet floor in a grocery store. To prevent this from happening again, the store manager buys and puts up a wet floor sign wherever the floor is wet. Counsel is eliciting this to prove how easy it would have been to have a wet floor sign to begin with. This is admissible under 407, as it goes to the Feasibility of Precautionary Measures. The ease with which the manager could requisition a wet floor sign means that a wet floor sign could have been there all along, and therefore prevented Jackson’s fall, but not that the store is necessarily responsible for Jackson’s fall.

Example 2: After being faced with a lawsuit regarding product defaults, XYZ Corp. immediately institutes a product recall in order to prevent anyone else from being harmed. Counsel is attempting to use this to prove that XYZ was responsible for the defects. This would be inadmissible under 407. It’s entirely possible XYZ’s stringent quality control didn’t catch the defect in question and they had no idea it existed despite attempts to detect it. To suggest just because they instituted a recall when faced with new information that they were always responsible does not follow.

Question 36

408

Answer 36

Compromise Offers and Negotiations, Prohibited Uses (408(a)):

No party can use, to prove, disprove, or impeach by prior inconsistent statement the validity or amount of a disputed claim via the following

• Any furnishing, promising, or offering of a valuable consideration in compromising or attempting to compromise the claim
• Any acceptance, promise to accept, or offer to accept valuable consideration in compromising or attempting to compromise
• Conduct or a statement made during compromise negotiations about a claim (except in criminal cases and negotiations are related to a claim from a public office in exercise of its authority).

Exceptions (408(b)):
May be admitted for other purposes, like bias, negating a contention of undue delay, proving an effort to obstruct criminal investigation.

Question 37

Application of Rule 408: Compromise Offers and Negotiations

Answer 37

Simply, if either side tries to settle or come to an agreement before trials happen requiring some sort of compensation (consideration), they can’t use those negotiations to prove damages or restitution required. That’s because negotiations to compromise are trying to avoid a trial, and may not represent the true value of the damages or restitution. It may be used for other purposes though, such as bias, or to prove/disprove that someone was trying to delay a result.

Example 1: In a trial bifurcating liabilities and damages and is currently in the liabilities stage, plaintiff counsel is using statements made during a prior negotiation to impeach the defendant as to the role they play in the company. This would not fall under 408. Although it takes place during a negotiations area, it doesn’t relate to the validity or amount of a disputed claim, and is allowed.

Example 2: In the damages stage of a trial, the plaintiff testifies the fair market value of their car at the time it was totaled by the defendant was $20,000. Defense counsel, on cross-examination asks if it is true that the plaintiff was looking to settle for $10,000. This would be inadmissible, as it uses a previous offer to settle the plaintiff made to try and disprove what the plaintiff testifies his damages are.

Example 3: In a pretrial hearing, plaintiff counsel alleges that defense counsel is trying to delay the case going to trial and is not entering mediation in good faith. To rebut this claim, defense presents a video from the mediation session of their negotiations with the plaintiff. This would be admissible, as it falls under the exceptions of 408(b), rebutting an allegation of undue delay.

Question 38

409

Answer 38

Offers to Pay Medical and Similar Expenses:
Cannot use evidence of someone paying or offering to pay medical, hospital, or similar injuries to prove liability.

Question 39

Application of 409: Offers to Pay Medical and Similar Expenses

Answer 39

409 is pretty self-explanatory. Can’t use offers to pay medical and similar expenses to prove liability.

Example 1: After a car crash, the defendant offers to pay for the ambulance that the plaintiff needs to go to the hospital. This cannot be used to prove liability.

Example 2: In the same car crash, the defendant instead says “Listen, I’ll pay for your medical bills and everything. But if you try to take this to court I’m going to hunt you down.” The plaintiff, fearing for their safety, accepts. This would be admissible for the sole purpose of showing that the plaintiff’s previous agreement with the defendant was made under duress (and therefore does not apply), but cannot be used to prove liability.

Question 40

411

Answer 40

Liability Insurance: Evidence someone was or was not insured against liability is not admissible to prove negligence or wrongful actions, but can be admitted for proving bias, agency, ownership or control.

Question 41

Application of 411: Liability Insurance

Answer 41

Very similar to 407, subsequent remedial measures. You cannot use the fact that someone was insured against something to prove that they did it. Pretty self-explanatory. It can be used for other purposes in court though.

Example: In a case alleging a landlord failed to take care of a property, and the subsequent lack of care caused injury to the victims, plaintiff counsel is attempting to enter the landlord’s insurance on the property (which includes a clause insuring the property for 1.5x the fair market value of the property for damages that accrue over the regular course of the building’s life. On what grounds would this be admitted? It may not be admitted to suggest to the jury the landlord was negligent in his care-taking of the building because he would profit from his own negligence. It may be used to establish that the landlord had ownership of the building and control over its maintenance.

Question 42

501

Answer 42

Privileges in General:
Only privileges granted by statute of the State of Midlands or Midlands case law can be recognized.

Question 43

Application of Rule 501 (Privileges in General)

Answer 43

A privilege is usually a matter of confidentiality between two parties that allows for them not to testify about it in front of a court, board, etc. Examples of this are attorney-client, parent-child, doctor-patient, spiritual counselor-counseled, etc.

501 states that unless a privilege is specifically granted by the MRE, Midlands Statutes, or Midlands Case Law, it does not exist. In other words, if a specific privilege is absent anywhere in the case packet, it’s fair game to talk about, and witnesses can’t withhold it on the basis of privilege.

Example 1: In a wrongful death case brought by a plaintiff-spouse, the plantiff-spouse, when testifying refuses to testify as to a conversation they had with their spouse on the grounds of spousal privilege. There is no statement contained in that year’s case packet which describes (or from which one can reasonably infer) that spousal privilege applies. This would therefore constitute the witness refusing to testify, and is a big no-no in Midlands